Abhilash v. State Of Kerala

ORDER

Petitioner is the fourth accused in Crime No. 48 of 2012 of Excise Range, Ernakulam for having committed offences punishable under Sections 55(a), 55D, 55E, 55F, 55G, 58 and 62 of the Abkari Act. The allegation against the petitioner and others is that on 31.5.2012 the Excise Officers seized 1728 liters of spirit contained in 54 plastic cans which were stored in the cabin of a lorry which was parked near a petrol pump at Edappally. Petitioner says that he was arrested from his work place on 10.7.2012 However, he claims that he is in no way connected with the incident as alleged by the prosecution. According to him, none of the records would show his actual involvement in the incident. He has been falsely implicated in the crime and no one has spoken about his presence at the spot or no one had identified him. The only evidence which the prosecution relies on is that the petitioner received several calls from the first accused and it was based on that fact that the petitiner has been implicated and arrested in the case.

2. Sri. Babu S. Nair, learned counsel appearing for the petitioner pointed out that apart from anything else, petitioner has been in custody for more than 60 days and at any rate, he is entitled to statutory bail under Section 167(2)(a)(ii) of Cr.P.C Learned counsel in support of his claim relied on the decision reported in Sreerajan v. State Of Kerala (2001 (1) K.L.T 827) and Rajeev Chaudhary v. State (Nct) Of Delhi. ((2001) 5 SCC 34). Learned counsel also referred to the decision reported in Bhupender Singh v. Jarnail Singh (AIR 2006 SC 2622) and Vinu v. State of Kerala (2011 (4) K.L.T 994). Attention was also drawn to the decision reported in C.K Boban v. The Union Of India (2005 (2) K.L.T 831).

3. It is contended that the maximum punishment which the court can impose upon the petitioner who is prosecuted for the offence under Section 55(a) Abkari Act is for a term of imprisonment upto ten years. Even if the petitioner is found guilty of all the offences, the period of sentence that could be awarded is only a term of imprisonment of less than 10 years except in case of offences under Sections 55(a) and 58 wherein the maximum term of imprisonment is upto to 10 years. As the petitioner has already undergone judicial custody for 60 days, it is contended that going by Section 167(2)(a)(ii) Cr.P.C since final report has not been filed within the stipulated time, petitioner is entitled to statutory bail.

4. Learned Public Prosecutor on the other hand relied on the decisions reported in Bhupinder Singh v. Jarnail Singh (AIR 2006 SC 2622) and Vinu v. State of Kerala (2011 (4) K.L.T 994) and contended that the investigating officer is entitled to get 90 days as contemplated under Section 167(2)(a)(i) Cr.P.C Attention was drawn to the decision reported in Vinu's case (supra), wherein this court had occasion to hold that the decision in 2001 (1) K.L.T 827) is no longer a good law in view of the decision of the Supreme Court in Bhupinder Singh's case (supra).

5. To understand the contentions, it will be appropriate to refer to Section 167 of Cr.P.C and Section 55(a) and 58 of Abkari Act which alone are relevant for the present purpose.

Section 167 Cr.P.C reads as follows:

“167. Procedure when investigation cannot be completed in twenty-four hours.-

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entires in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that,-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linage;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.

………………………”

Sections 55(1) and 58 of the Abkari Act read as follows:

“55(1). for any offence other than an offence falling clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.”

“58. For possession of illicit liquor.-

Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing the duty, tax or rental payable under this Act not to have been paid therefor, shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.”

6. Section 167 deals with a situation where the investigation cannot be completed within 24 hours. It stipulates that then the accused shall be produced before the learned Magistrate who may remand the accused to custody. It is by now well settled that for the initial 15 days police custody can be given. Thereafter only judicial custody is contemplated under the provision. Section 167(2)(a) Cr.P.C deals with two situations; first one makes mention of a situation where judicial custody cannot be ordered beyond a period of 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years or in other words where custody cannot extend beyond a period of 90 days where the investigation relates to any such offence. The second situation is that in a case where the offence is not covered by Section 167(2)(a)

(ii) Cr.P.C The vexed question is as which of the provision will apply in a case where the maximum sentence of imprisonment that could be awarded is upto 10 years. This court had occasion to consider the issue in Sreerajan v. State Of Kerala (2001 (1) K.L.T 827). In the said decision, it was held as follows:

“4. The question arising for consideration is whether the petitioner is entitled to get bail in view of the provisions contained in the proviso to S. 167(2) of the Cr.P.C Admittedly, the investigation in the case has not been completed and the charge has not been laid before the Court.

The petitioner is in custody since 23.12.2000 The proviso to S. 167(2) lays down that no Magistrate shall authorise the detention of the accused person in custody for a period exceeding 90 days where the investigation relates to an offence punishable with death imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relates to any other offences and the person concerned is to be released on bail if he is prepared to and does furnish bail. According to the Public Prosecutor, the expression “offences punishable with imprisonment which may extend up to 10 years” includes all offences where the punishment is imprisonment for a term not less than 10 years referred to in proviso (a)(i) of S.167 Cr.P.C I cannot agree. To attract the proviso (a)(i) of S. 167(2), the offence must be punishable with death, imprisonment for life or imprisonment for a term not less than 10 years. But in the case of an offence punishable with imprisonment which may extend up to 10 years, the court is competent to pass a sentence of imprisonment less than 10 years. Therefore, an offence punishable with imprisonment which may extend up to 10 years is covered by the proviso (a)(ii) to S.167(2) and not covered by proviso (a)(i). In all cases where the offences are punishable with imprisonment which may extend up to 10 years, the legislature does not expect the imposition of sentence of imprisonment not less than 10 years. In a case covered by proviso to (a)(i) of S. 167(2) the minimum punishment is imprisonment for 10 years where as in the case of an offence punishable with imprisonment which may extend up to 10 years the maximum punishment is imprisonment for 10 years. Therefore, the two cases cannot be included in the same category. In this case, the petitioner is alleged to have committed an offence punishable with imprisonment for a term which may extend to 10 years and with fine which shall not be less than Rs. 1 lakh. As already noticed, the petitioner is in custody since 23.12.2000 Therefore, he has to be released on bail if he is prepared to and does furnish bail in view of the proviso (a)(ii) to S. 167 of the Cr.P.C”

7. The Apex court had occasion to consider a similar issue in the decision reported in Rajeev Chaudhary's case (supra). There, the issue considered was whether the term ‘imprisonment for a term of either description for a term which may extend to 10 years’ would fall under Section 167(2)(a)(i) or (ii). In the said case, the offence involved was Section 386 I.P.C and the court came to the conclusion that the provision applicable to the said offence is Section 167(2)(a)(ii). It was held as follows:

“6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. Hence in case, where offence is punishable with imprisonment for 10 years or more, accused could be detained up to a period of 90 days. In this context, the expression “not less than” would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more.

Further, in context also if we consider Clause (i) of Proviso (a) to Section 167(2) it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 of the I.P.C imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years.”

8. In the decision reported in Bhupinder Singh's case (supra), the application of Section 167(2)(a)(i) Cr.P.C was considered in the context of the offence under Section 304B I.P.C Section 304B of I.P.C provides for imprisonment for a term which is not less than 7 years but which may extend to imprisonment for life. The Apex Court while considering the said question had occasion to observe that it is not the minimum sentence that determines the application of Section 167(2)(a)(i) or (ii), but the maximum sentence that could be awarded for the offence involved in the case. Considering the offence involved in that case, i.e, Section 304B, and that the sentence provided for the said offence is upto life imprisonment, the Apex court held that the provision that covers the situation is Section 167(2)(a)(i) Cr.P.C

9. It is significant to notice that in the decision reported in Bhupinder Singh's case (supra) the decision in Rajeev Chaudhary's case (supra) was referred to in paragraph 11.

10. In Rajeev Chaudhary's case (supra) it was held that the court could award the sentence in respect of the offence under Section 386 I.P.C is a sentence of imprisonment upto 10 years. In the said case, it was held that the wording in Section 167(2)(a)(i) is ‘not less than 10 years’ whereby it means that the imprisonment should be minimum of 10 years or more and may not cover the offence for which the term of imprisonment is upto 10 years. It is significant to notice that Bhupinder Singh's case (supra) has not overruled Rajeev Chaudhary's case (supra). As noticed, Bhupinder Singh's case only stated that it is not the minimum period that needs to be looked into, but the maximum period of sentence that could be awarded for an offence to determine whether it is Section 167(2)(a)(i) or (ii) that applies. Bhupinder Singh's case did not lay down the proposition that if the offence is punishable upto 10 years, it is Section 167(2)(a)(i) that will apply. Since the offence under Section 304B provides for imprisonment for life, only Section 167(2))(a)(i) will apply. But Bhupinder Singh's case cannot be understood to have laid down the principle that if the term of imprisonment provided is upto 10 years, it is Section 167(2)(a)(i) that will apply. Bhupinder Singh's case will have to be understood as laying down the principle that it is the maximum sentence that could be awarded for an offence which will determine whether it is covered by Section 167(2)(a)(i) or (ii).

11. In the decision reported in Vinu's Case (supra) the court was considering an offence under Section 457 I.P.C for which the punishment provided is sentence for a term of imprisonment which may extend to 14 years. Obviously, the court had the discretion to impose imprisonment exceeding 10 years upto a maximum limit of 14 years. In such cases, applying the principle laid down in the decision reported in Bhupinder Singh's case, obviously the provision that would be attracted to the said offence is section 167(2)(a)(i). At the risk of repetition, one may notice that it is not the minimum sentence that has to be looked into, but the maximum sentence that could be awarded for the offence which the court is dealing with in the context. In Vinu's case in view of the principle laid down in Bhupinder Singh's case the correctness of the decision in Sreerajan's case (supra) did not arise for consideration at all since in Vinu's case the term of imprisonment could be upto 14 years.

12. It is also interesting to note that in the decision in C.K Boban v. The Union Of India (2005 (2) K.L.T 831) Sreerajan's case (supra) was again referred to, but on facts it was found that the principle laid down in Sreerajan's case could not be followed.

13. As far as the case on hand is concerned, the maximum sentence that could be awarded under Section 55(a) and Section 58 of Abkari Act is ‘upto ten years’. The court cannot impose a sentence more than ten years and it could award a sentence of imprisonment for a term of ten years or less than ten years. Applying the principle laid down in the decisions reported in Sreerajan's case and Rajeev Chaudhary's case, it follows that the provision that applies to the facts of the case is Section 167(2)(a)(ii) and the investigating officer has 60 days to file the charge so as to deny statutory bail to the petitioner. In the case on hand, the charge sheet has not been filed within the statutory period. If that be so, the petitioner is entitled to compulsory bail under Section 167(2)(a)(ii).

Therefore, this application is allowed on the following conditions:

i) Petitioner shall be released on bail on his executing a bond for a sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties for the like sum each to the satisfaction of JFCM-I, Aluva.

ii) The learned Magistrate may ensure the identity of the sureties and also the veracity of the tax receipts that are sought to be produced at the time of executing the bond.

iii) Petitioner shall report before the Investigating Officer on every Wednesday between 9 a.m and 10 a.m till final report is laid.

iv) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses.

v) If any of the condition is violated, bail granted to the petitioner shall stand cancelled, and the JFCM concerned, on being satisfied of the said fact, may take such proceedings as are available to him in law.